Adoption of Richards, Matter of, WD

• Decision Date: 27 October 1981
• Docket Number: No. WD,WD
• Parties: In the Matter of the ADOPTION OF John Henry RICHARDS II and Douglas Michael Richards. Jerome Joseph LEHMEN and Linda Katherine Lehmen, Respondents, v. Johnnie Franklin RICHARDS, Appellant. 31862.
• Court: Missouri Court of Appeals

Page 483

624 S.W.2d 483

In the Matter of the ADOPTION OF John Henry RICHARDS II

and

Douglas Michael Richards.

Jerome Joseph LEHMEN

and

Linda Katherine Lehmen, Respondents, v. Johnnie Franklin RICHARDS, Appellant.

No. WD 31862.

Missouri Court of Appeals, Western District.

Oct. 27, 1981.

David Dwain Kite, Mid-Missouri Legal Services Corp., Jefferson City, for appellant.

F. Joe DeLong, III, Jefferson City, for respondents.

Before MANFORD, P. J., and DIXON and NUGENT, JJ.

NUGENT, Judge.

Johnnie Franklin Richards appeals from the decree of adoption of the circuit court of Cole County terminating the parental rights of the appellant, the natural father of John Henry Richards II and Douglas Michael Richards. The decree was entered after evidentiary hearing pursuant to § 453.040, RS Mo. 1978, on the joint petition of the boys' stepfather, Jerome Joseph Lehmen and their natural mother, Linda Katherine Lehmen. At the same time the court overruled the appellant's motion to modify the dissolution decree in the circuit court case of In Re: The Marriage of Linda K. Richards and Johnnie F. Richards. We reverse.

On May 31, 1979, Mr. Richards filed a motion to modify the 1975 decree which dissolved his marriage to Mrs. Lehmen, asking the court to decrease his monthly child support payments for the two children of the marriage and to grant him specific visitation rights. On August 20, 1979, Mr. and Mrs. Lehmen filed their amended petition for adoption of the two children and for the termination of Mr. Richards' parental rights, alleging that he had willfully abandoned and neglected the minor children for at least one year. Mr. Richards filed his answer to the adoption petition on August 28, 1979, alleging that he had been denied visitation with his children, Mrs. Lehmen had refused his offers of child support payments and that the children received disability benefits under the Social Security Act on his account. On October 1, 1979, Mr. and Mrs. Lehmen filed a motion to dismiss Mr. Richards' motion to modify the dissolution decree, and on December 3, 1979, Mrs. Lehmen filed her answer to the motion. In the interim, on October 12, 1979, Mr. Richards filed a motion to consolidate the two actions. Trial of the consolidated actions was held on March 10, 1980.

In his decree of adoption of April 14, 1980, the trial judge found that "the allegations of the petition for adoption are true" and the "natural father has willfully abandoned the minor children for one year and more immediately prior to the filing of the petition for adoption herein."

This case falls within § 453.040(4) which in part provides as follows:

The consent of the adoption of a child is not required of

....

(4) A parent who has for a period of at least one year immediately prior to the filing of the petition for adoption, either willfully abandoned the child or willfully neglected to provide him with proper care and maintenance.

Therefore, our review of this case is governed by the holding of this court in In re Adoption of LeGrande, 581 S.W.2d 414 (Mo.App.1979), at 415:

In their efforts to balance the interest of natural parents and the welfare of children, the courts have clearly expressed that willful neglect and willful abandonment mean the intent or mental attitude of the natural parent.

....

Each case must be decided upon its own individual circumstances. Such cases, being of an equitable nature, require this court to review both the facts and the law pursuant to Rule 73.01. (Citations omitted.)

Mr. Richards and Linda Richards (now Lehmen) were married on September 16, 1972. Their sons John Henry and Douglas Michael were born in 1973 and 1975. The 1975 decree of dissolution granted Linda custody of the children and ordered Mr. Richards to pay $75 a month per child as support. Linda married Jerome Lehmen in March, 1978.

At the trial Mr. Lehmen testified that Mr. Richards had paid absolutely no child support and was over $8000 in arrears. Mr. Richards said he "made some payments on and off" shortly after the divorce as well as some payments to an attorney. The last payment was in December, 1977, but he had no records or receipts to buttress his testimony. Mr. Richards explained that among the reasons for his repeated defaults, was the fact that he had been disabled since January, 1978 and was occasionally unemployed prior to that. The record does not show that Mrs. Lehmen attempted to collect child support payments through the court. Mr. Richards also claimed Mrs. Lehmen refused payments; he had a tentative recollection of "one or two" such instances. Mrs. Lehmen testified that she refused payment only once when he presented her a $100 check. She balked because she doubted its validity, and she insisted on a more reliable medium of payment. Although he testified that he then gave her the same amount in cash, she denied it. Undisputed, however, was the fact that since June, 1979 the children had each been receiving $61.09 per month in governmental assistance due to Mr. Richards' disability. Mrs. Lehmen affirmed the fact that Mr. Richards contacted her in January, 1979 to obtain the boys' social security numbers in order to apply for benefits for them. Mrs. Lehmen placed these funds in a savings account for the children. The government also paid back benefits in excess of $2000. This, too, went into savings, except for $850 used to finance the adoption proceedings.

The parties agreed that Mr. Richards had visited the children with some frequency in the months immediately after the divorce. From 1976 onward, however, those meetings were sporadic at best. Mrs. Lehmen recalled Christmas visits in 1975 and 1976, as well as one in the spring of 1977. Mr. Richards acknowledged his visits were infrequent, but he blamed Mrs. Lehmen for that state of affairs. He testified that in 1976 he attempted to arrange visits ten or fifteen times, but Mrs. Lehmen rebuffed his overtures. Mrs. Lehmen flatly denied she had ever forbidden visitation. Mr. Richards recalled seeing the children near Christmas in 1977 or 1978. Without notifying Mrs. Lehmen in advance, he visited them about once a year while they were with a baby sitter. According to Mrs. Lehmen, these meetings ceased early in 1977. Mr. Richards fixed the last visit in August, 1978. In January, 1980 Mr. Richards encountered John on his way home from kindergarten. The child did not know his father. To reverse that estrangement, Mr. Richards arranged a visit. It was cancelled after he insisted on meeting the children in a private part of the Lehmen home. Mrs. Lehmen refused that condition. She wanted to be present because the boys did not know their father.

Prior to filing the motion on May 31, 1979, Mr. Richards never attempted to enforce his visitation rights through the courts. He contacted attorneys in 1976 and 1977, but said he could not afford to retain one. He contacted the court and was again told to see an attorney. He also talked to an employee of the Division of Family Services who was unable to assist him.

Section 453.040(4) is disjunctive: either willful...